Morality as Voting Qualification

It must be admitted that the right wing often crafts arguments that are persuasive, however contrary to common sense or democratic values. In the quiet of Falls Church, an organization called the Center for Equal Opportunity [CEO] generates propaganda for righties and tailored to them. CEO’s website motto proclaims it “The nation’s only conservative think tank devoted to issues of race and ethnicity.” Among others, it has constructed arguments against allowing any executive [read gubernatorial] authority to restore voting rights to persons disabled therefrom by a prior felony conviction. CEO maintains that any such application for restoration must “show that he or she has truly changed” because “if you won’t follow the law yourself, you can’t make the law for everyone else.” And, CEO argues, in any event, such restoration may be a useless exercise because “the unfortunate truth is that most people who walk out of prison will be walking back in.” As it turns out, Virginia boasts the lowest recidivism rate in the nation, testimony to the Commonwealth’s corrections efforts.

The legal rationale for this position is that such laws apply equally to all felons, regardless of race, despite data that demonstrate that the effect falls disproportionately upon African-Americans and Hispanics. The argument continues that such facially neutral statutes are constitutional so long as they are not racially based in their application or in their origin. Felon disenfranchisement, it must be recalled, originated as part of the package of Jim Crow legislation adopted in the early 1900’s to insure restriction of voting by African-Americans. CEO further persuades itself on the grounds that the absence of a legal challenge to Virginia’s statute is evidence that it is not unconstitutional!

However, Alabama and Virginia share some common history in establishing voting barriers. Both states held constitutional conventions at the opening of the 20th century, adopting, among others, statutes barring felons from exercising voting privileges. Both jurisdictions—along with a number of other Southern states—were in the throes of post-Civil War Reconstruction, and the ruling classes were concerned that the 14th and 15th amendments would transform the electorate and shift governmental control to African-Americans. The constitutional conventions, all white, seemed dedicated to the proposition that not all men are created equal, certainly not for purposes of voting.

According to the president of the Alabama convention, the state’s new laws would be directed “within the limits imposed by the Federal Constitution to establish white supremacy.” A leader in the Virginia convention was somewhat less opaque and even more politically incorrect:

This plan will eliminate the darkey as a political factor in less than five years, so that…there will be no concern felt for the complete supremacy of the white race in the affairs of government.

Virginia’s efforts were successful, as black voters declined 81% in 4 years—from 147,000 in 1900 to 21,000 in 1904—a devastatingly and intentional disparate impact. Oddly, the claim that such statutes may be facially neutral in their application is belied by the statements of members of the conventions concerning the purpose of the provisions.

Even if an individual has completed his/her obligation to society, the voting privilege might still be denied on the basis of moral turpitude, the legal definition of which is “conduct contrary to community standards of justice, honesty, or good morals.” While Virginia has not added this disqualifier, moral turpitude can be a disqualification from obtaining an occupational license, including one to practice law. This disability is yet another barrier to securing employment and successful re-integration into society, as well as contributing to recidivism by way of insurmountable employment barriers.

An Alabama court in 2006 pronounced that:

The fundamental nature of the right at stake [voting], . . . the court must conclude that every citizen otherwise eligible to register . . . may not be denied that right solely by virtue of a prior felony conviction.

All this is to point out that, while Virginia does not have a moral turpitude barrier to voting, CEO clearly suggests application of one in its criterion for “truly changed” offenders, i.e. those who can demonstrate they have, in fact, “truly changed.” Perhaps the better question is whether the community or society has truly changed, become more just.